Amortization Non Compete Agreements

A recent Finanzgericht decision highlights a problem with the legal provisions governing the amortization of intangible assets. IRC Section 197 came into force in 1993 to clarify the treatment of intangible assets. Prior to that date, the goodwill acquired in connection with the acquisition of a business could not be depreciated or deducted from tax. However, taxpayers had made considerable progress in moving away from this rule by characterizing good re-business as something else, such as customer lists or a commercial bank`s basic storage base. When someone agreed not to compete with the sale of their shares in a business, the purchaser depreciated the amount paid for the Confederation during its term of life — a logical result. In the tax jurisdiction, the subject`s argument in favour of the non-application of Section 197 was that the 23% interest in the transaction he had purchased in the transaction was not a “significant” interest in a business, so Section 197 did not apply. The court did not believe that the taxpayer read the law correctly. Section 197 applies where the non-competition agreement was entered into “in connection with the acquisition of a stake in or a substantial portion of a commercial activity.” The court stated that the “essential part” “trade or business” changes, not “interest.” In the Tribunal`s view, the concept of “substantial party” is limited to transactions structured as asset acquisitions. When you buy a company`s assets, you must acquire a substantial portion of the assets. On the other hand, if the business is operated by a business, the acquisition of a potential interest in the business that owns the business or activity is sufficient. Both types of non-compete agreements are related to a payment to the employee or contractor as fair compensation for the agreement not to earn money in competition with the former employer/new contractor. The intention of the payment is to compensate for any shortfalls for the person signing the contract. A non-compete clause usually consists of several alliances aimed at obtaining the buyer`s “bargain advantage,” which is not lost in value for a certain period after closing due to certain acts of the seller.

For example, if you sell me your auto parts manufacturer, I could ask you to promise that you will not turn around and that you will open another similar manufacturing company near me. The conditions governing competition bans vary; In fact, I want you to promise that you can`t open shop for a few years, or even in the same county or state. Penalties for violations can be significant and could effectively cause the person to leave the company. In conclusion? Competition bans can appear in a number of agreements and have significant tax consequences. Example 1: Buyer P acquires the entire Target T stock of each J for $200 million in cash. T has liabilities and assets of approximately $20 million with a fair value of approximately $220 million. J is T`s sole shareholder and a major member of management. As part of the agreement, J and P put in place a five-year non-competition agreement. J will be retained as a T employee after the acquisition as part of an employment contract that properly compensates J.

The sales contract does not include an agreement on the value or award of the consideration assigned to the non-competition agreement. The FAS 141R valuation establishes a fair value of $15 million on the non-profit federal government and a fair value of $150 million for good business will. The result is that, although the restriction lasted only one year, the taxpayer had to depreciate the $400,000 he paid for 15 years. This was clearly a terrible tax result. This taxpayer would have been more likely to deduct his payment over 12 months if he could structure the agreement as a one-year board agreement prohibiting the worker from competing for the duration of his consulting contract.

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